Legal double standards: Itamar and Awarta

Military courts in the West Bank don't provide justice to either Palestinians or Israelis [EPA]

Last March, a vicious crime occurred in the occupied Palestinian territories. Five members of an Israeli settler family were slain in their home in Itamar, a settlement in the northern West Bank. A mother, father, two young children and a three-month-old were all stabbed to death.

Now, two men stand accused of the crime and await trial in a military court. However, given the investigative practices and “justice” system of the military courts that preside over the West Bank, there is scant confidence that justice will indeed prevail. This has profound implications for Palestinians and, in this case, the victims themselves.

Gruesome pictures of the slaughtered Fogel family appeared on the internet soon after the murders. The horrific crime was instantly labelled a "terrorist" act, and Israeli politicians called for the immediate prosecution of the culprits.

Itamar is located atop a northern West Bank hill next to Awarta. Its rabbi, Avichai Ronsky, is known for encouraging disregard of international war regulations during Operation Cast Lead. Awarta is a poor farming village known for its high concentration of communists and supporters of the Popular Front for the Liberation of Palestine (PFLP).

A year prior to the killings, two cousins from Awarta, Salah and Muhammad Qawariq, aged 18 and 19, were shot to death by the Israeli army. Palestinian sources maintain that settlers from Itamar had crossed the valley between Itamar and Awarta and attacked the two boys at work in their own fields before the Israeli army intervened and shot the young men.

Thus, the crime was cast as an act of retribution and the military focused its investigation on Awarta. The village was subjected to repeated and egregious forms of collective punishment: mass arrests, house raids and village-wide closures. Most villagers had bruises for weeks after being beaten by soldiers, and children remained traumatised by the violent raids on their homes.

Throughout the excruciating siege, Palestinians in Awarta and throughout the West Bank insisted that no Palestinian would commit a crime of this nature.

Palestinian media ran an alternative story that convinced many: A Thai or Philippine gardener had become enraged after not receiving any payment for his work and killed the family.

Because the investigation was put under a gag order, there was no evidence presented to the public supporting either accusation. The gross display of collective punishment caused the investigation to lose legitimacy in the eyes of Palestinians and legal and human rights organisations.

After a little over a month the gag order was lifted, and the Israeli army announced that two young men from Awarta had confessed to the crime.

Now, Hakim and Amjad Awad, also aged 18 and 19, are being tried in Salem Military Court, located just north of Jenin, for the murders. The prosecution seeks the death penalty, which has not been called for by any Israeli judge since Nazi war criminal Adolf Eichmann was tried and convicted in a Jerusalem courtroom.

Salem Court lies along the increasingly irrelevant Green Line. “One door on our side, one door on their side,” explains Mohannad Alharaz, a lawyer who represents Amjad as part of the Palestinian Prisoner’s Club, a legal organisation of public defenders.

Like most military courts, there’s a transitory façade to Salem Court. A series of beige trailers stand side by side, forming a labyrinthine block. But these military courts in the West Bank have been operating since 1967.

To describe what occurs in the Israeli military court as a trial would be misleading. In 2008, Yesh Din, an Israeli human rights organisation, found that less than 0.3 per cent of the Palestinians tried in Israeli military courts were acquitted.

“It doesn’t matter what happens in court. The only result is guilty,” Abed Aal explains with a pragmatic shrug. Aal is the director of the Palestinian Prisoner’s Club. Tall and slim, Aal has a black moustache that curves around the corners of his mouth.

In many regards the distinction between legal proceedings and military operations is seamless. Military orders, not international and Israeli law, govern the courts, and they are designed to strongly favour the army. Almost all judges are former military officers with little or no experience in civilian courts. Prosecuting attorneys are Israeli soldiers, who are not required to pass the Israeli bar.

So it is not surprising that the guilty verdict of a military court has no credibility among Palestinians. Naturally, the courts are not viewed as intending to restore “security and public order”, but as a kangaroo court aiming to criminalise Palestinians living in the West Bank.

“The soldier, the prosecutor, the judge and me - we are all just a part of the machine. Every time you are guilty,” says Alharaz, intimating the futile role of the defense.

What has become obvious is that for the last 44 years all people in historical Palestine - from the Jordan River to the Mediterranean Sea - have been ruled by one power: Israel. In all cases, Israel segregates the distribution of its rule according to ethnicity and religion.

Some examples: Israel will build a school in a Jewish settlement but destroy one in the neighbouring Palestinian village; settlements are connected to unlimited water supplies, while Palestinian crops and water tanks are desiccated; Israeli settlers are virtually never prosecuted for habitual attacks on Palestinians, while Palestinians are incarcerated at a dubiously high rate.

Up until now, this apartheid system has operated in dramatic favour of Israeli settlers. Yet the case of Itamar will suspend that duality and render both Israelis and Palestinians victims to the same fraudulent military justice system.

The term “show trial” is used to describe a trial in which the guilt of the defendant is predetermined. In such trials the evidence is inconsequential. Here there is no need for proof because its function is to imprison a population, not provide it with justice.

Israeli military trials are at once opaque and certain: the procedures are hidden from the light of media, and its language, Hebrew, is incomprehensible to most of its defendants. Their outcomes, however, are assured.

For these trials, the show is not the drama played out in court but the assertion of an unassailable authority that imposes absolute and senseless rule over the Palestinian population. Thus the court charade affects neither deterrence nor resolution. Rather, the military system stands with Israel’s occupation as a single monolith that inflicts wanton punishment, not protection or order.

Show courts have long thwarted justice - whether it was the trial of Julius and Ethel Rosenberg in America, Saddam Hussein in Iraq or the countless “enemy combatants” in Guantanamo Bay.

In some respects, all trials have a “show” aspect. Trials exist for the public benefit and are indeed meant to influence people outside of the courtroom. Society seeks a judicial process not only for the sake of a defendant, but for its own health and welfare. Through an objective and methodical process, a fair trial strives to provide the victims with as close an approximation of the truth as possible, and the gratification of seeing consequences meted out to the perpetrator. By establishing a reliable justice system, society can trust its judicial process to deliver these things.

But in this case, neither the Fogel family nor anyone living in the West Bank have that basic tenet of civilisation or can trust that the outcome of this case is accurate.

Glaring questions remain: in its zeal to find a culprit for a ghastly crime, were the investigation’s methods compromised? The ensuing siege of Awarta received attention and condemnation from independent media; was the need to find the culprit there motivated by the need to prove the siege was productive, if brutal?

Israel will never deliver justice to Palestinians, but we presume it would to its own citizens. If the justice system is tainted here - as we know it to be for most who come under its control - the Fogels and their loved ones will not see justice any more than the accused young men whose lives are over.

Charlotte Silver is co-editor of The Palestine Monitor and a writer for The Electronic Intifada. She is based in the West Bank.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.